Mohammed Othman (Abu Qatada) v Secretary of State for the Home Department (Special Immigration Appeals Commission) 12 November 2012 – read judgment
Muslim cleric Abu Qatada has won his appeal against deportation to Jordan, where Mitting J concluded that he would not receive a fair trial.
Qatada was convicted of terror charges in Jordan in his absence in 1999 but so far he has successfully resisted being sent back there because of the risk of an unfair trial, despite the assurances given by Jordan to the Home Secretary assurances that no evidence gained through torture would be used against him. As Mitting J said, once it has been established that there is a “substantial” risk that a person will not receive a fair trial in the destination state, the government must demonstrate that there is no risk that person will receive a “flagrantly unfair” trial. This is a lower test than demonstrating that no risk at all existed. But on the basis of SIAC’s findings, Mitting J found that there was in fact a real risk that evidence obtained by torture of two men had been obtained by torture.
A quick scan of the list of “Related Posts” below reveals the prolonged history of this case. Enough already? Apparently not.
The following is based on SIAC’s summary of the judgment:
SIAC set out two critical questions to determine whether there was a real risk that these statements would be admitted in the case against Qatada in Jordan:
1) Irrespective of the means by which they were obtained, are these statements now admissible at all under the Jordanian Code of Criminal Practice?
2) If they are, is there a real risk they will be admitted even though there is a ‘real risk’ that they were obtained by torture?
The first question was not to be conclusively answered.
Until and unless the [Jordanian] court of Cassation gives us an authoritative ruling on the question, it must remain open.
The second question was considered in detail in paragraphs 68-73. SIAC concluded
…The only means of eliminating a real risk that statements which may well have been obtained by torture will be admitted probatively at the appellant’s retrial would be for the burden of proving, to a high standard, that they were not, to be placed upon the prosecutor. Anything else gives rise to a real risk that they will be [para 73]
On the Article 3 question, SIAC remained satisfied that the assurances given by the Jordanian government provide, in their practical application, a sufficient guarantee that the appellant will be protected against the risk of ill-treatment by the Jordanian state.
The government has confirmed that it will appeal.
- Abu Qatada detention will continue through Olympics
- Abu Qatada appeal was in time but will not be heard by the Grand Chamber
- Time, time, time, look what’s become of me
- Abu Qatada and the law of time – Carl Gardner
- Abu Qatada released on “very restrictive” bail conditions
- No deportation for Abu Qatada, but where are we now on torture evidence? – Professor Adam Tomkins
- Indefinite detention: not very British
- Suspected terrorist may not be deported to Jordan – Strasbourg rules